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135 Nat'l Corp. Rep. 1 (1957)

handle is hein.journals/natcorprep135 and id is 1 raw text is: Volume 135. Number I. CHICAGO, JUNE 21, 1957 Subscription $5 a Year. Ten Cents a Copy EDWIN HALL COOKE, OFFICIAL REPORTER. (Volume 11, Second Series.) (Illinois Advance Sheets.) Punzak et al., appellees, vs. DeLano et al., appellants. (Klingbiel, C. J.) Vol. 11 (2nd), p. 117. (No. 34272.- Decree affirmed.) Building re- strictions-restrictions create right in the nature of an ease- ment. Building line restric- tions upon the use of property which are imposed as a part of a general plan for the bene- fit of all lots, give to the pur- chasers a right in the nature of an easement,. which will be enforced in equity against owners of other lots so af- fected. Same-general rule as to wheh a restriction is waived. Equity will not enforce a building line restriction on the use of property where the evi- dence shows that the plaintiff has waived or abandoned it, ,and the question whether such an abandonment has occurred depends upon the facts and circumstances of the particu- lar case, and even though the plaintiff's own structure proj- ect9 beyond the building line, he is-not necessarily precluded from enforcing the restriction unless his own breach is a ma- terial and substantial one. Same--when finding that building line restriction is not waived or abandoned will be sustained. Where, in a suit to enjoin defendants from violat- ing a building line restriction, the evidence establishes that the houses of two of the plain- tiffs, as well as some other houses in the addition, have porches which extend beyond [the building line, and the buildings of some other 'prop- erty owners extend over the line two feet or less, the mas- ter's finding that such viola- tions are not sufficiently seri- ous or material to indicate a waiver or abandonment of the restriction will be sustained, where the porches do not form substantial parts of the houses and do not interfere with light and air. Appeal and error-when findings of master will not be disturbed. Where a master in chancery hears the evidence and makes findings thereon, which findings are approved by the chancellor who con- siders the evidence on excep- tions thereto, such findings will not be disturbed on re- view unless manifestly against the weight of the evidence. Building restrictions--what is not sufficient to indicate that plaintiffs have acquiesced in general abandonment of luilding line restriction. Where a building line restric- tion is imposed upon all lots in an 'addition devoted to com- mercial and residential uses as a part of a general plan for the benefit of all lots in the addition, and where there is no showing that certain minor violations of the restriction are material or close enough to plaintiffs' property to have an appreciable effect thereon, such evidence is not sufficient to indicate acquiescence by plaintiffs in a general aban- donment of the restriction and they are not precluded from enjoining the defendants from violating its provisions, for unless minor violations by others have a substantial rela- tion to the plaintiffs' property, or interfere with its enjoy- ment, the fact that they have not expressed objection does not preclude them from ob- jecting to one which injuri- ously affects them. Same - mere fact of a change in the character of the neighborhood does not war- rant relieving property from set-back restriction. Defend- ants in an action to enjoin violation of a subdivision set- back restriction may not ar- gue that the restriction should not be enforced because the character of the neighborhood has changed into one that is predominantly commercial, for the mere fact that a change has occurred in the neighborhood does not, alone, warrant a court of equity in relieving property of set-back restrictions, particularly where there is no evidence concerning its former charac- ter, or anything to show that the object of the restriction can no longer be accomplished by its enforcement. * * * Macdonald, appellant, vs. La Salle National Bank, Con- servator, et al., appellees. (Hershey, J.) Vol. 11 (2nd), p. 122. (No. 34258.-Judg- ment affirmed.) Insane per- sons-when petitioner may not claim that statute under which she was adjudged in- competent is-invalid. Where petitioner, 17 years after be- ing adjudged an incompetent person, seeks to vacate the or- der appointing a conservator for her, alleging that the court (Continued on page 9) CAUSE OF ACTION OPERATING UPON SEVERAL PERSONS AT ONE TIME Insurance Law United States Circuit Court of Appeals, Fifth Circuit. December 15, 1954. Saint Paul-Mercury Indemnity Company vs. Rutland. Syllabus. An automobile truck, being operated in a negligent manner by the owner's employee and in furtherance of his master's business, collided with a freight train derailing the train and causing damage to sixteen cars thereof, the contents of said cars, and the road- bed of the railroad company. The dam- aged railroad cars belonged to fourteen separate owners, the contents to various shippers. If one cause of action operates upon several persons at one time, it cannot be regarded as a gen- eral accident, but the injury to each individual is a separate accident with- in the meaning of an insurance con- tract in a specified sum against liability to pay claims for personal injuries or property damage. The words each accident, as used in the policy in the instant case, must be construed from the point of view of the person whose property was injured. When separate property of each claimant is damaged, an accident occurs to the property of each owner. Action on 'automobile lia- bility policy which limited amount of liability for prop- erty damage for each acci- dent, arising out of collision of insured automobile with a train containing cars belong- ing to 14 separate owners and contents of such cars belong- ing to various shippers. The United States District Court for the Northern District of 4Georgia, Frank A. Hooper, J., rendered a judgment for plain- tiff and defendant appealed. Affirmed. 217 Fed. (2nd) 585.' Before Holmes, Borah, and Tuttle, Circuit Judges. Holmes, lCircuit Judge: The parties are in agree- ment that the only question before this court is the mean- ing of the words each acci- dent in an insurance policy under the circumstances of the case at bar. The facts were stipulated, and the appellee's brief opens with the state- ment that the case before the court is fairly stated in the brief of appellant. Conse- quently, we shall look to the appellant's brief for a fair and condensed statement of the facts. An automobile truck of ap- pellee, being operated in a neg- ligent manner by his employee and in futherance of his mas- ter's business, collided in Geor- gia with a freight train of a railroad company, derailing the train and causing damage to sixteen cars thereof, the contents of said cars, and the roadbed of said company upon which the train was travelling. The damaged railway cars be- longed to fourteen separate owners, and were damaged in amounts ranging from $349.63 to $4,015.67, the total damage to said sixteen cars being $41,- 371.31. The contents of said cars belonged to various ship- pers, and were damaged in the aggregate sum of $7,638.91. The roadbed of the company, the operator of the train, was damaged in the amount of $9,000. The company institu- ted suit against appellee for the aforesaid damages in the sum of $75,000. At the time of said collision, there was in full force and effect a comprehensive auto- mobile liability insurance pol- icy, issued by appellant in favor of appellee, which pro- vided for limiting the insurer's liability to $100,000 for bodily injury to each person, $300,- 000 for each occurrence, and $5,000 property damage for each accident. The insurer agreed to pay on behalf of the insured all sums which the in- sured became obligated to pay by reason of the liability im- posed upon him by law or con- tract for damages sustained by any person or persons because of bodily injury, sickness, or death; and the insier further agreed to pay on behalf of the insured all sums which the insured became obligated to pay by reason of the liability imposed upon him by law or contract for damages because of injury to-or destruction of property, including the loss of the use thereof, caused by ac- cident and arising out of the ownership, maintenance, or use of any automobile. Said policy was counter- signed at Atlanta, Georgia, and was issued to appellee in said state. Having been so issued, the policy is a Georgia con- tract and is governed by the laws of that state. Therefore we must give full considera- tion to the rule that requires all ambiguities in the policy to be construed most favor- ably to the insured, and the words used in the policy must be given their usual and ord- inary signification. Jacobs vs. Merchaint'..:Ei c ..Asurance Corp., 5. : .rr *.A. 55; Alito2Qbile on ..C.o., of Hart- fo T. ~:.Vs ny~8~i. 2U6 J4.2nd. 41; Eddy vt'. Traveler4 I. Cp.,:.-aiftrd, Conn.,10Cii-12F2,::8; Pink, N. Y., Superintendent of Insurance vs. Georgia Sta- ges, Inc., D.C., 35 F.Supp. 437; Reynolds Metals Co. vs. In- (Continued on page 10) RECENT ILLINOIS SUPREME COURT DECISIONS Digitized from Best Copy Available Published at 1207, 8 S. Dearborn St. Chicago, Ill. Telephone RAndolph 6-0661 ESTABLISHED June 23, 1890. A *, Entered as Second Class Matter, October I, 1890, at the Post Office at Chicago. II1., under Act of March 3,, 1879. Financial-Commercial ***Dun & Bradstreet, Inc., in its weekly review of whole- sale commodity prices, June 11, says: The Daily Whole- sale Commodity Index, com- piled by Dun & Bradstreet, Inc., rose again this week and closed at 289.10 on June 10. This was moderately above the 286.59 of the preceding week, and slightly above the 288.21 a year ago. Price in- creases in steel scrap, rubber, coffee, sugar, and cocoaoffset declines in most grains, live- stock, tin, and zinc. Trading in grains fell again this week, as favorable weather condi- tions in growing areas pre- vailed. Transactions declined most noticeably in the corn and wheat markets, and prices fell appreciably. However, ex- ports of wheat and flour were sustained at a high level,-with 500,000,000 bushels exported so far for the crop season as a whole. This considerably ex- ceeded expectations. There was a moderate rise in Gov- ernment selling of surplus corn. Soybean purchases fell somewhat below those of the prior week, and were notice- ably less than a year ago. Al- though interest in rye and oats expanded substantially, prices sagged. Average daily purchases of grain and soy- bean futures on the Chicago Board of Trade last week. stood at 36,000,000 bushels, almost unchanged from the previous week, but below the 51,000,000 bushels of the com- parable period last year. Sug- ar prices advanced slightly, despite a moderate decline in purchases. Flour bookings were sluggish, but prices climbed somewhat. Coffee trading was close to that of the preceding week, as many buyers waited for reports on new crop plans of South American growers. There was a slight rise in coffee futures prices. Cocoa trading expand- ed noticeAbly at the end of the week boosting prices some- what. Warehouse stocks of cocoa stood at 255,866 bags, down moderately from the level of the previous week. Ar- rivals 'or the season to date amounted to 1,810,745 bags, compared with 2,298,135 bags in the similar period a year ago. Hog prices climbed to .recrd high levels for the year E a the beginning of the week, butb they slipped somewhat at the end of the period. Hog receipts in Chicago were the highest for any week since early in February, and trad- ing was steady. There was a (Continued on page 10) DEVOTED TO GENERAL NEWS, LAW, COMMERCE AND FINANCE

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